The terrorist attack on school in Peshawar has outraged the whole Pakistan. Now suddenly we have started analyzing the problems in our society. There are many issues in our society, but the problem with our criminal justice system is humungous. Since independence, we never had made a serious effort to reform our justice system which we inherited from the British rule, which was made by the British to achieve their own goal and agenda in the Indian-subcontinent.
The smooth working of the justice system is pivotal for the flourishing of any civilized society. In order to run an effective criminal justice system,it is imperative to have an independent prosecution department, which we never had in Pakistan. In our beleaguered country the prosecution is controlled by the executive, there is no concept of independent prosecutors. The job of the prosecution is to decide whether it is in the national interest to prosecute any offender and whether the prosecution has enough evidence to get the conviction from the court. In our country the prosecution has been used to settle scores with political rivals; as partisan prosecutors are mainly chosen for the job, whose job is to mainly protect the interest of their affiliated party.
The other important problem with our justice system is, we are in a dire need of procedural reform in our justice system. There are many loopholes in rules of evidence and lack of strong desire to implement the laws. Trials are not completed within time, no cost sanctions are imposed on the parties if the case is adjourned due to their failures to attend the trial. Courts don’t encourage expert evidence, which can assist the court in explaining the technical issues in the case which are vital for the understanding of the case as a whole. Use of expert evidence has become increasingly common in other jurisdictions of the world for criminal trials.
Lawyer community also has a share in the failure of our criminal justice system. Lawyers have manipulated the legal system to their own advantage; in the dispense of justice the lawyers have a key role to play. Our bar council also has failed to regulate the lawyers effectively which has resulted in the masses losing the confidence in the legal system.
An issue that we should address in order to strengthen our justice system is lack of training for investigation officer. The investigation officers are not properly trained to conduct in depth investigation, which would allow them to gather enough evidence to get the conviction. There is no proper transparent mechanism to hire investigation officer,the overwhelming majority that doesn’t have legal educational background which is highly desirable to conduct proper investigation.
The recent move of the government to set up military courts is not going to provide a long term solution to our problems. The state has the burden to address whether the military courts can provide a fair trial to suspected criminal which is embedded in our constitution under article 10-A. The military courts can be given legal cover by the parliament,but the Supreme Court reserves the right to strike it out, if the Supreme Court decides that military courts cannot provide a fair trial to suspects hence due process of law cannot be followed. The Supreme Court will face an uphill task to balance the two fundamental rights enshrined in the constitution: to protect the life and the property ofthe people, and to protect the rights of suspects, to have a fair trial. It is imperative for the rule of law and the supremacy of the constitution that the Supreme Court should be satisfied that there are adequate measures placed to protect the miscarriage of justice.
The solution to our problem lies in reforming our criminal justice system.The Independent prosecution department should be formed, in which executive should not interfere in its working. With the help of military courts, we may be able to get convictions of the terrorist, at the cost of justice and rule of law, but the long term solution lies in reforming the criminal justice system which should be aligned according to the changing needs of our society.